Rosenblatt v. Levin

• Decision Date: 15 April 1940
• Citation: 12 A.2d 627,127 N.J.Eq. 207
• Parties: ROSENBLATT v. LEVIN et al.
• Court: New Jersey Court of Chancery

12 A.2d 627

127 N.J.Eq. 207

ROSENBLATT

v. LEVIN et al.

Court of Chancery of New Jersey.

April 15, 1940.

Syllabus by the Court.

1. Restrictive covenants should be construed in accordance with the intent of the language used by the parties imposing them and, if ambiguous, against the covenant.

2. Defendant enjoined from operating a rooming or boarding house business (as distinguished from the mere incidental renting of spare rooms in a dwelling principally used for family residential purposes) being conducted in a building erected on lands subject to the restrictive covenant "that no building excepting for cottage resident purposes or hotels or drug stores shall be erected on any part of said land."

Suit by Sidney Rosenblatt against Abraham Levin and Edwin Levin to enjoin the defendants from using and permitting a dwelling house to be used in any other manner than as a private dwelling house, and from causing or permitting loud noises to emanate therefrom.

Decree for complainant.

John Rauffenbart, of Atlantic City, for complainant.

Endicott & Endicott, of Atlantic City, for defendants.

SOOY, Vice Chancellor.

Complainant seeks to enjoin defendants from "using and permitting the aforesaid dwelling house to be used in any other manner than a private dwelling house" and "from causing or permitting loud noises to emanate" therefrom.

The basis of complainant's asserted right to an injunction is a restrictive covenant imposed upon the land by the original developers of the restricted tract, of which covenant defendants were admittedly aware at the time they became lessees of the premises and of which they were fully advised, not only during the period they occupied the premises as lessees, but also when they took title thereto, and under the evidence there may be no doubt but that defendants' possession and subsequent ownership was and is subject to the covenant.

The covenant which the complainant seeks to enforce is—"that no building except for cottage resident purposes or hotels or drug stores shall be erected on any part of said land." The covenant recites "that the object of the covenants is to secure the health, beauty, ornamentation and value of the premises" and a reading of the entire covenant results in a determination that the language used therein was intended to and did create a neighborhood scheme. Scull v. Eilenberg, 94 N.J.Eq. 759, 121 A. 788; DeGray v. Monmouth Beach Club House Co., 50 N.J.Eq. 329, 24 A. 388; Clarke v. Kurtz, 123 N.J.Eq. 174, 196 A. 727; Shoyer v. Mermelstein, 93 N.J.Eq. 57, 114 A. 788; LaFetra v. Beveridge, 124 N.J.Eq. 24, 199 A. 70.

The restriction was imposed in July of 1899 on a large tract of land in Atlantic City, bounded on the south by the Atlantic Ocean, on the east by Raleigh Avenue, on the west by Columbia Avenue and on the north by the Meadow Line. This Meadow Line, so-called, generally speaking is 100 feet south of Ventnor Avenue.

The evidence discloses that the occupants of the restricted tract have built their buildings thereon and occupied them in obedience to the restrictions, excepting as to the defendants' premises, which is known as No. 60 South Delancy Place, and the evidence further discloses that that property, during the years 1938 and 1939, was occupied as a rooming house and, further, that in the years 1916 to 1922 one Mrs. Washburn occupied the property as a private sanitarium for contagious diseases, under circumstances hereinafter to be related.

Defendants admit that they are now using the building at No. 60 Delancy Place aforesaid as a rooming house and boarding house and they allege it was so used in the year 1938 by a tenant then in possession thereof. The defenses are that the operation of a rooming house is not prohibited by the restrictions aforesaid, nor is the operation of a boarding house contrary to the general objects and purposes of the restrictions, and that the complainant is guilty of laches.

Taking up the use of defendants' property in 1916 to 1922 by Mrs. Washburn, we find that it was, in fact, so used by her, and that Doctor Marshall sent patients there for treatment of contagious diseases, that he knew of other patients being there during that period, and a Mr. VanDyne, a hotel clerk, sent patients there, and certain of the hotels of Atlantic City contributed to the support of the property as a sanitarium during the period aforesaid. Neither of these witnesses ever saw a sign on the premises advertising it as a place for such purposes, and I am satisfied that there was no public advertisement of Mrs. Washburn's willingness and ability to use the property as a sanitarium. In fact, Mr. Scanlon, residing in the neighborhood during the aforesaid period and ever since, never knew of such use, nor did Mr. O'Neill and his wife, who lived on the opposite corner from said property and who occupied his residence as a summer home, bought it with knowledge of the restriction and because it was in a restricted neighborhood. He knew Mrs. Washburn by way of a speaking acquaintance and never suspected the existence of a sanitarium at that address. I am satisfied that Mrs. Washburn operated secretly and that the fact that she was violating the restriction was not known by her neighbors. It is absurd to think that what is commonly referred to as a "pest house" would be allowed to operate by owners of property and occupants in this neighborhood, and this irrespective of any restriction.

As to occupancy during 1938 and 19.39, there is no doubt but that in 1938 defendants' property was unoccupied until the summer, when a tenant moved in, but it also appears that complainant, having rented his home, did not have cause for complaint as to the use of defendants' property, but that there was an organization known as the Chelsea Protective League, whose officers protested vigorously to the city authorities and attempted to prevent such occupancy.

In the succeeding year, 1939, defendants having entered into possession, put up a sign "To open April 15th as a Rooming House," and during the summer complainant made vigorous complaints to the city authorities, as well as to the Chelsea Protective League, and the latter attempted to prevent the occupancy and, after failure so to do through attempts to rezone under ordinance, this bill was filed.

Defendants entered into possession of the premises under a lease dated December 24, 1938, in which it was provided that they should not occupy the premises "nor use nor permit any part thereof to be used for any other purpose than a rooming house."

In the lease aforesaid ...